April 30, 2012

Ms. Donna W. Cameron

First Assistant Criminal District Attorney

Galveston County Criminal District Attorney's Office

600 59^th Street, Suite 1001

Galveston, Texas 77551-4137

OR2012-06220

Dear Ms. Cameron:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 451963.

The Galveston County Criminal District Attorney's Office (the "district attorney's office") received a request for the complete file relating to a specified case. You claim some of the submitted information is not subject to the Act. You state you will redact social security numbers from the submitted information pursuant to section 552.147(b) of the Government Code. ⁽¹⁾ You claim the submitted information is excepted from disclosure under sections 552.101, 552.107, 552.108, 552.117, 552.1175, and 552.130 of the Government Code and privileged under Texas Rules of Evidence 503 and 508. We have considered the exceptions you claim and reviewed the submitted information.

Initially, you state some of the submitted information is not subject to the Act. The judiciary is expressly excluded from the requirements of the Act. See Gov't Code § 552.003(1)(B). This office has determined that for purposes of the Act, a grand jury is part of the judiciary and is therefore not subject to the Act. See Open Records Decision No. 411 (1984). Moreover, records kept by another person or entity acting as an agent for a grand jury are considered to be records in the constructive possession of the grand jury and are therefore not subject to the Act. See Open Records Decisions Nos. 513 (1988), 398 (1983). But see ORD 513 at 4 (defining limits of judiciary exclusion). The fact information collected or prepared by another person or entity is submitted to the grand jury does not necessarily mean such information is in the grand jury's constructive possession when the same information also is held in the other person's or entity's own capacity. Information held by another person or entity but not produced at the direction of the grand jury may well be protected under one of the Act's specific exceptions to disclosure, but such information is not excluded from the reach of the Act by the judiciary exclusion. See ORD 513. Therefore, to the extent the district attorney's office has possession of the information you have marked as an agent of the grand jury, any such information is in the grand jury's constructive possession and is not subject to the Act. This decision does not address the public availability of any such information, which need not be released to the requestor. To the extent the district attorney's office does not have possession of this information as an agent of the grand jury, any such information is subject to the Act and must be released unless the information falls within the scope of an exception to disclosure. Therefore, we will address your arguments for this information, as well as the remaining information.

We note the submitted information consists of a completed investigation, which is subject to section 552.022 of the Government Code. Section 522.022(a)(1) provides for required public disclosure of "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body[,]" unless it is excepted from disclosure under section 552.108 of the Government Code or is expressly made confidential under the Act or other law. See Gov't Code § 552.022(a)(1). Although you seek to withhold portions of the submitted information under section 552.107 of the Government Code, this section is discretionary and does not make information confidential under the Act. See Open Records Decision No. 676 at 6 (2002) (section 552.107 is not other law for purposes of section 552.022); see also Open Records Decision No. 665 at 2 n. 5 (2000) (discretionary exceptions generally). Therefore, you may not withhold any of the submitted information under section 552.107 of the Government Code. However, the Texas Supreme Court has held the Texas Rules of Evidence are "other law" that make information expressly confidential for the purposes of section 552.022. In re City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001). Therefore, we will consider your arguments under Texas Rules of Evidence 503 and 508. You also claim portions of the submitted information are excepted by section 552.101 of the Government Code in conjunction with the common-law informer's privilege, which is "other law" that makes information confidential for the purposes of section 552.022. Tex. Comm'n on Envtl. Quality v. Abbott, No. GN-204227 (126th Dist. Ct., Travis County, Tex.). Therefore, we will consider your assertion of the informer's privilege for the submitted information. We will address your arguments under section 552.108 pursuant to section 552.022(a)(1) of the Government Code. You also claim sections 552.101, 552.117, 552.1175, and 552.130 of the Government Code. Because these sections can make information confidential under the Act, we will address the applicability of these exceptions to the submitted information.

Section 552.108 of the Government Code provides in relevant part:

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from [required public disclosure] if:

. . .

(4) it is information that:

(A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or

(B) represents the mental impressions or legal reasoning of an attorney representing the state.

Gov't Code § 552.108(a)(4). A governmental body must reasonably explain how and why section 552.108 is applicable to the information at issue. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). In Curry v. Walker, 873 S.W.2d 379 (Tex. 1994), the Texas Supreme Court held that a request for a district attorney's "entire litigation file" was "too broad" and, quoting National Union Fire Insurance Co. v. Valdez, 863 S.W.2d 458 (Tex. 1993, orig. proceeding), held that "the decision as to what to include in [the file] necessarily reveals the attorney's thought processes concerning the prosecution or defense of the case." Curry, 873 S.W.2d at 380. You contend, and we agree, the request for information encompasses the district attorney's office's entire case file. You state this information contains the mental impressions and legal reasoning of the prosecutors in the district attorney's office. Thus, upon review, we conclude section 552.108(a)(4) of the Government Code is applicable.

However, section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). Basic information refers to the information held to be public in Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). See Open Records Decision No. 127 (1976) (summarizing types of information made public by Houston Chronicle). Therefore, with the exception of basic information, the district attorney's office may withhold the requested information under section 552.108(a)(4) of the Government Code and the court's ruling in Curry. ⁽²⁾

This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free at (888) 672-6787.

Sincerely,

Charles Galindo Jr.

Assistant Attorney General

Open Records Division

CG/em

Ref: ID# 451963

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. Section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office. See Gov't Code § 552.147(b).

2. As our ruling is dispositive, we need not address your remaining arguments against disclosure.

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